State v. Stanley Lawson ( 1997 )


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  •             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE
    AUGUST 1997 SESSION          FILED
    STATE OF TENNESSEE              )    C.C.A. No. 01C01-9607-CR-00320
    October 24, 1997
    )
    )    SUMNER COUNTY
    Cecil W. Crowson
    VS.                             )
    Appellate Court Clerk
    )    HON. JANE WHEATCRAFT
    STANLEY LAWSON                  )    JUDGE
    )
    )    (Incest)
    FOR THE APPELLANT:                   FOR THE APPELLEE:
    JOHN E. HERBISON                     JOHN KNOX WALKUP
    Attorney at Law                      Attorney General & Reporter
    2016 Eight Avenue South
    Nashville, Tennessee 37204           DARYL J. BRAND
    Assistant Attorney General
    450 James Robertson Parkway
    Nashville, Tennessee 37243
    SALLIE WADE BROWN
    Assistant District Attorney General
    113 West Main Street
    Gallitin, Tennessee, 37066
    OPINION FILED:___________________
    AFFIRMED
    JOE H. WALKER, III
    Sp. JUDGE
    OPINION
    The defendant appeals a jury verdict finding him guilty of twenty-five counts of
    incest. The defendant was sentenced to seven years on each count, with counts one
    through ten to be served consecutively, and the others to be run concurrently. The jury
    assessed fines of ten thousand dollars per count. The court reduced the fines to two
    thousand dollars per count.
    The defendant presents the following issues for consideration:
    1. Whether the proof was insufficient as a matter of law to sustain a conviction,
    in that the defendant was convicted on the uncorroborated testimony of an accomplice;
    and whether the trial court erred through its instructions by submitting to the jury the
    question of whether the victim was an accomplice so as to require corroboration of her
    testimony.
    2. Whether the admission of a redacted version of an audio tape recording of a
    conversation between the defendant and the victim was error.
    3. Whether the trial court erroneously permitted the victim to testify from notes.
    4. Whether the trial court erred by allowing a statement of the defendant to be
    submitted to the jury.
    5. Whether the trial court erroneously excluded cross examination of the victim
    concerning certain prior statements.
    6. Whether the trial court erroneously permitted the jury to take transcripts of a
    tape recorded conversation between the defendant and victim into the jury room during
    deliberations.
    7. Whether the trial court erroneously ordered consecutive sentencing as to ten
    counts of the indictment; and whether this was a harsher effective sentence on retrial,
    violating due process.
    2
    Procedural Background
    The defendant was indicted on twenty-six counts of incest, alleging that he
    sexually penetrated his adopted daughter, on twenty-six specified dates. The case was
    tried, with the state dismissing one count of the indictment. The jury found the
    defendant guilty on the remaining twenty-five counts. After a sentencing hearing, the
    defendant was sentenced to six years in prison on each count, with ten of the
    sentences to be served consecutively, and the others to run concurrently.
    The defendant filed a petition for post-conviction relief, alleging ineffective
    assistance of counsel. After a hearing, the petition was sustained, and the convictions
    were set aside, and the defendant was granted a new trial.
    The defendant moved to suppress certain statements he made in a tape
    recorded conversation with the victim, and after an evidentiary hearing, the motion was
    denied, with the court proposing certain redactions. As redacted, the tape and
    transcription of the conversation were admitted into evidence at trial, and submitted to
    the jury.
    The jury at re-trial found the defendant guilty on all twenty five counts of incest.
    Factual Background
    The defendant was the step father of the victim, and adopted her when she was
    four years old. The acts of incest alleged in the indictment occurred when the victim
    was fifteen years of age, and in the ninth grade.
    The victim lived with her mother, the defendant, and her younger brother, who
    was the son of the victim’s mother and the defendant. The family lived in a double wide
    trailer on fourteen acres in Sumner County.
    At the time of most of the incidents of incest, the victim’s mother would not be at
    home. The victim’s mother worked at a store in Nashville, and usually spent the entire
    weekend in Nashville, staying at her own mother’s home. Most of the acts of incest
    3
    occurred during those weekends. One act (count 22) occurred while the mother was at
    home but asleep.
    The younger brother was usually at home, but slept in another room of the trailer.
    The defendant would block the doorways to prevent the brother from observing the
    sexual activities. On one of the occasions the brother was outside playing, and the
    defendant locked him out of the trailer. On another occasion, the brother walked into
    the defendant’s bedroom during anal incest of the victim, and the defendant tried to
    cover up the victim so that the brother would not see her.
    At the trial, the victim described in detail the sexual activities that occurred on
    each of the twenty-five dates specified in the indictment. She testified that she had
    independent recollection of the events, although she used notes formulated from a
    calender to help keep straight which events occurred on which precise dates.
    The victim related that on several occasions she would watch x-rated videos with
    the defendant, and the defendant would have the victim act out fantasies for him. On
    certain occasions the defendant would argue with the victim about playing the stereo
    too loudly, or going out with boys, or meeting friends. After those arguments the
    defendant would engage in incest with the victim.
    The victim recounted the numerous instances, by specific date, on which the
    defendant sexually penetrated her vaginally, orally, and anally. On at least one
    occasion the sexual intercourse was extremely painful to the victim.
    The victim requested that the defendant stop having sex with her and simply act
    as her “daddy,” and he agreed. Shortly after that promise, they were wrestling on the
    bed and the defendant began feeling her and then engaged her in sex. On several
    other occasions the victim discussed with the defendant stopping the sexual
    encounters, but the relationship continued sexually.
    In March, 1993, because the victim was late for her period, the defendant
    purchased an over-the-counter pregnancy test kit. When the results were negative, the
    defendant celebrated with incest on the victim. Shortly after that, the victim told her
    guidance counselor in high school about the sex with her adoptive father. The victim
    was then interviewed by a sexual abuse counselor from the Tennessee Department of
    4
    Human Services. The complaints were reported to a detective with the Sumner County
    Sheriff’s Department, who requested that the victim wear a concealed microphone while
    speaking with her adoptive father. The victim called the defendant, and arranged a
    time and place for a meeting. At the deputy’s suggestion, the victim told the defendant
    that she had run away, but that they needed to meet and talk. They arranged to meet
    at a local restaurant.
    The deputies were present at the restaurant, and monitored and recorded the
    conversation between the victim and the defendant. After hearing the conversation
    through the concealed microphone, the deputies confronted the defendant, and read
    him the Miranda warnings, and transported him to the sheriff’s department. The
    defendant was again advised of his Miranda warnings, and signed a waiver of those
    warnings. The defendant was asked if he knew why they wanted to talk to him and he
    answered “a problem involving my daughter.” The detective asked the defendant if he
    knew what the allegations were, and the defendant responded, I believe it’s about me
    molesting or raping my daughter. The defendant then requested an attorney, and the
    questioning ended.
    Sufficiency of the Proof - Accomplice
    The defendant maintains that the evidence is insufficient as a matter of law in
    that the defendant was convicted on the uncorroborated testimony of an accomplice.
    The defendant further submits that the trial court erred through its instructions by
    submitting to the jury the question of whether the victim was an accomplice so as to
    require corroboration of her testimony.
    Accomplice
    An accomplice is one who knowingly, voluntarily, and with common intent unites
    with the principal offender in the commission of a crime. Conner v. State, 
    531 S.W.2d 119
     (Tenn. Crim. App. 1975). The test is whether or not the alleged accomplice can be
    indicted for the offense. If, however, the witnesses’ participation in the crime is the
    result of force, coercion, duress, or undue influence so that the participant does not act
    5
    voluntarily, with the same intent as the principal, then the witness is not an accomplice.
    Henley v. State, 
    489 S.W.2d 53
     (Tenn. Crim. App. 1972); State v. Green, 
    915 S.W.2d 827
     (Tenn. Crim. App. 1995).
    If the offense of incest is committed without the victim’s consent, then
    corroboration of the victim’s testimony is not required. Scott v. State, 
    207 Tenn. 151
    ,
    
    338 S.W.2d 581
     (1960).
    This court finds that there was sufficient evidence in the record to submit to the
    jury the question whether the victim consented, and thus was an accomplice.
    The victim testified that she wanted “a daddy,” and the defendant would not be
    that for her. She felt hurt by all of the acts of incest, which she described in great detail.
    She wanted him to be her dad instead of doing what he did to her. She and her father
    had heated discussions about the sexual relations he was engaging her in. Her father
    had told her to perform these acts, and began to take it for granted.
    The victim described in detail each incident covered by each separate count of
    the indictment. Several of the incidents occurred after the defendant became mad at
    her. In the incident set out in count two, the defendant accused her of playing the
    stereo too loud, got mad, and began fighting with her. He tied a door to the bedroom of
    the victim’s brother, the only other person in the house. He put a chair against the
    door, and engaged her in incest activities.
    In the incident alleged in count four of the indictment, he got x-rated movies for
    the victim to watch, and performed anal sex on the victim. She testified that it hurt real
    bad. She said something at that time about it.
    In the incident alleged in count five of the indictment, the defendant got mad
    when she had gone out with friends. He yelled at her, and then had sex with her using a
    mirror.
    On another occasion her father bought her a douche, and told her to hide it
    from her mother. On one occasion, she missed her period, and her father bought a
    pregnancy test. He was afraid she might be pregnant with his child.
    On another occasion, the victim had gone out with her friend, Greg, and the
    defendant got mad at her, and told her to tell anyone who asked her out that she
    6
    already had a boyfriend. He covered the windows with towels before engaging her in
    incest.
    In the incident set out in count ten, the defendant rented x-rated movies and
    made her act out parts of the video.
    In the incident set out in count eleven, the victim had missed a 10:00 p.m.
    curfew, and the defendant became angry, and was not okay until after sex with the
    victim.
    In the incident alleged in count twelve, the defendant made the victim put on her
    mother’s lingerie, and the defendant ripped it off of her before engaging her in incest.
    In the incident alleged in count thirteen, the defendant made her dance while
    wearing lingerie before engaging her in incest.
    In the incident alleged in count fifteen, the defendant would not let her go out
    with her friend Misty, and told her she had to stay home; that he was going to try
    strawberry jell on her while engaging her in incest.
    In the incident set out in count seventeen, the victim testified that the acts of
    incest hurt real bad, and she screamed out. The defendant continued to perform the
    act anyway.
    In the incident set out in count eighteen, the victim was on her period, and the
    defendant did not want intercourse. He wanted anal incest, and made her put a towel
    on the bed. The victim’s brother walked in and the defendant got mad and screamed at
    him. The defendant was on top of her, and covered her up. The brother started crying.
    In the incident set out in count twenty, the defendant was looking out the door to
    the trailer at her brother while he was outside playing. He required the victim to perform
    oral sex on him, then told her that she could go out and play.
    In the incident set out in count twenty-four of the indictment, the victim had asked
    the defendant if they could stop doing all this, and if he would just be her daddy. They
    began wrestling on the bed, and the defendant started touching her. The defendant
    then engaged her in incest.
    7
    The victim testified that she did not tell anyone because she was “scared.” She
    did not want to take her brother’s father away from him, and she did not want to hurt her
    mother.
    From these circumstances, as well as the position of trust occupied by a parent
    with respect to a daughter, and the nature of the sexual acts performed, there was
    sufficient evidence for a reasonable trier of fact to find or infer that the victim was not a
    consenting participant, and was thus not an accomplice.
    The trial court correctly submitted this issue to the jury.
    Corroboration
    In State v. Delph, slip opinion number 257 (Ct. Crim. App. 1986), the appellant
    was convicted of incest on the testimony of his step-daughter, which was corroborated
    by the appellant’s confession. A confession must be considered in connection with all
    the other evidence to establish the defendant’s guilt or innocence. The
    victim/accomplice’s testimony was corroborated by the appellant’s confession, and the
    appellant’s confession was corroborated by the victim/accomplice’s testimony. Thus
    while neither her testimony standing alone nor the confession standing alone would be
    sufficient to establish that the appellant had committed a crime, these bits of evidence
    taken together can establish the crime.
    In this case, the taped conversation between the defendant and victim
    corroborated numerous elements and details of the victim’s testimony. The
    conversation referred to incidences in which x-rated videos were watched, when they
    acted out what they watched. The defendant apologized to the victim. The defendant
    explained that they were performing these acts because he kept telling himself that he
    loved the victim. He kept living a different life because there had been things in his life,
    in his younger life, that he never got to experience, and every time he got involved with
    someone it was always someone else lying about how they felt about him; and “that’s
    no excuse...I just wanted to...for one time...experience a loving relationship.” The
    defendant acknowledged prior discussions when they had talked about stopping it, and
    that he had said that they were going to stop it. Immediately after discussing the
    defendant’s promises to stop the sexual activities, the victim asked what happened
    8
    Saturday. The defendant replied that was his mistake. The defendant said “I didn’t
    mean to do that, honey...there were things...that you had been saying to me for the last
    week or so...and I thought you were throwing me signals...I misunderstood you.” When
    the victim would ask why the defendant had sex with her, he would apologize. When
    the victim would cry that he had hurt her, he would acknowledge that fact. When the
    victim asked him to promise that we’ll never have to have sex again, he answered no,
    never.
    The statements made by the defendant shortly after his arrest indicating that he
    knew the detectives wanted to ask him about allegations about “me molesting and
    raping my daughter,” support an inference that could be made by the trier of fact that
    such conduct had occurred.
    The appellate courts have addressed the nature, quality, and sufficiency of the
    evidence required to corroborate the testimony of an accomplice on numerous
    occasions. In Sherrill v. State, 
    204 Tenn. 427
    , 
    321 S.W.2d 811
     (1959), the supreme
    court said:
    The rule of corroboration as applied and used in this State is that there must be
    some evidence independent of the testimony of the accomplice. The
    corroborating evidence must connect, or tend to connect the defendant with the
    commission of the crime charged; and, furthermore, the tendency of the
    corroborative evidence to connect the defendant must be independent of any
    testimony of the accomplice. The corroborative evidence must of its own force,
    independently of the accomplice’s testimony, tend to connect the defendant with
    the commission of the crime.
    This corroborative evidence can be direct evidence, or circumstantial. The
    corroboration need not of itself be adequate to support a conviction, but it must be
    sufficient to meet the requirements of the rule and it is sufficient if it fairly and
    legitimately tends to connect the defendant with the commission of the crime charged.
    Sherrill, 204 Tenn. at 435; 
    321 S.W.2d at 815
    .
    The evidence must confirm in some manner that (a) a crime has been committed
    and (b) the accused committed the crime. State v. Boulton, 
    214 Tenn. 94
    , 99; 
    377 S.W.2d 936
    , 939 (Tenn. 1964).
    The evidence corroborating the testimony of an accomplice may consist of direct
    evidence, circumstantial evidence, or a combination of direct and circumstantial
    evidence. The quantum of evidence necessary to corroborate an accomplice’s
    9
    testimony is not required to be sufficient enough to support the accused’s conviction
    independent of the accomplice’s testimony. State v. Sparks, 
    727 S.W.2d 480
    , 483
    (Tenn. 1987). Nor is it required to extend to every portion of the accomplice’s
    testimony. Stanley v. State, 
    189 Tenn. 110
    , 116-17, 
    222 S.W.2d 384
    , 387 (1949). To
    the contrary, only slight circumstances are required to corroborate an accomplice’s
    testimony. Sparks 
    727 S.W.2d at 483
    ; Stanley, 189 Tenn. at 116-17, 222 S.W.2d at
    387; Bolton v. State, 
    591 S.W.2d 446
    , 448 (Tenn. Crim. App.), per. app. denied (Tenn.
    1979). The corroborating evidence is sufficient if it connects the accused with the crime
    in question. Stanley v. State, 189 Tenn. at 117, 222 S.W.2d at 387.
    In this case the defendant acknowledged in his statements a continuing course
    of conduct to corroborate the allegations of the victim.
    In State v. McKnight, 
    900 S.W.2d 36
     (Ct. Crim. App. 1994), a victim/accomplice
    who was sexually abused by the defendant gave a detailed description of the
    defendant’s acts against him. This was corroborated by other victims’ testimony
    describing similar patterns of conduct. The entire course of conduct was held to furnish
    sufficient corroboration, even though the testimony of the other victims did not describe
    the specific incidents of which the victim/accomplice complained.
    In Bethany v. State, 
    565 S.W.2d 900
     (Tenn. Crim. App. 1978), the testimony of a
    non-accomplice witness that he saw the defendant commit four of the sex offenses
    against the victim was corroborative evidence from which a jury could find that the
    defendant committed two other offenses in the same pattern.
    The defendant in this case corroborated some specific incidences testified to by
    the victim. This corroboration was in the taped conversation heard by the jury. He also
    referred to a continuing pattern of incestuous conduct. His own statements
    corroborated the existence of a sexual relationship, continuing through the indictment
    period and up to shortly before his arrest.
    The defendant’s statement to the police upon his arrest, further corroborated
    these illegal acts.
    There was sufficient evidence before the jury as the trier of fact to determine that
    the victim was not an accomplice, and therefore no corroboration of her testimony
    10
    would be required. Also, there was sufficient evidence before the jury as the trier of fact
    to determine that her testimony was corroborated if the victim was an accomplice.
    This issue is without merit.
    Redacted Version of a Taped Conversation
    The defendant filed a motion to suppress the tape-recorded conversation with
    the victim. After a hearing, the trial court suggested a redacted version of the taped
    conversation, and allowed the state to admit the redacted version as a trial exhibit, and
    play the redacted version of the tape recording for the jury.
    The defendant alleges that the admission of the tape recording even as
    redacted, injected “other crime” evidence into the trial in violation of Tenn. R. Evid.
    404(b). The court has reviewed the tape and transcript presented the jury, and finds
    that as redacted it did not include any explicit references to bad acts of the defendant
    before the indictment period.
    The defendant complains that though prior bad acts were redacted from the
    statement, the statement may have included some statements by the defendant
    responding to the excised references by the victim to prior bad acts. However, the bad
    acts were unknown to the jury, and the defendant’s responses to the redacted prior bad
    acts also referred to a continuing course of sexual conduct between the defendant and
    victim, occurring during the indictment period. There were other matters discussed on
    the tape including the x-rated videos, the broken promises to stop having sex, the one
    particular Saturday night episode, which were separate from the redacted portions of
    the tape.
    The court finds that the trial court was very conscientious in efforts to redact the
    statement and tape. The defendant had been granted a new trial due to references to
    prior bad acts, and the trial court was very careful during the motion hearing, and during
    the trial itself, to prohibit references to prior bad acts of the defendant.
    The court having found that the tape and transcript were properly redacted, also
    finds that the admission of the redacted tape did not violate Rule 403, and did not
    11
    violate the constitutional due process guarantees of the Fourteenth Amendment.
    It is within the discretion of the trial court to determine whether to admit evidence
    of a tape or transcript of the tape, and that discretion will not be disturbed absent
    abuse. See State v. Elrod, 
    721 S.W.2d 820
    , 823 (Tenn.Crim. App. 1986). The trial
    court made a finding that the probative value of the tape as redacted outweighed the
    danger of unfair prejudice.
    The trial court did not err in admitting the tape recording and allowing the jury to
    use the transcript. See State v. Smith 
    868 S.W.2d 561
     (Tenn. 1993).
    Victim’s Use of Written Notes to Refresh Her Recollection
    The defendant alleges that the trial court erroneously permitted the victim to
    testify from notes.
    The trial court had an extensive jury out hearing and determined that the victim
    had independent recollection. The court allowed the victim to refer to the notes to
    refresh her memory and keep straight the dates on which particular events occurred.
    The general rule is that a witness may refer to notes to refresh her recollection.
    State v. Lingrel, 
    692 S.W.2d 41
     (Tenn. Crim. App. 1985). The trial court has wide
    discretionary authority over the propriety, scope, manner and control of the examination
    of witnesses. State v. Carpenter, 
    773 S.W.2d 1
     (Tenn. Crim. App. 1989).
    The defendant complains that the notes should not have been used as they did
    not fall within Rule 803(5) of the Tennessee Rules of Evidence. Rule 803(5) applies to
    a writing shown to have been made or adopted by the witness when the matter was
    fresh in the witness’s memory. Recorded recollection is used in lieu of a witness’
    testimony when that witness cannot recall the event in any meaningful way. Neil P.
    Cohen et. al., Tennessee Law of Evidence § 803(5).1 (3d ed. 1995).
    A writing used to refresh one’s memory is not a hearsay exception, but rather a
    means to facilitate a witness’ testimony when he or she cannot completely remember
    the details of an event. See Tenn. R. Evid. 612. When a witness’ memory is refreshed,
    12
    the adverse party may inspect the writing, cross-examine the witness and introduce
    portions into evidence. Tenn. R. Evid. 612.
    In this case the victim testified she had independent present recollection of all
    key events, and recalled the specific dates when reminded by her notes which she had
    derived from the calendar. Her use of notes fell under Tenn. R. Evid. 612.
    The Advisory Commission Comments to Rule 612 suggest guidelines by which a
    witness may refresh her memory: “The direct examiner should lay a foundation for
    necessity, show the witness the writing, take back the writing, and ask the witness to
    testify from refreshed memory.” The witness established that the notes would help her
    refresh her memory of the dates of the events to which she was testifying. Because
    they were not taken back, there appears to have been error by the manner in which the
    notes were used. See State v. Dishman, 
    915 S.W.2d 458
     (Tenn.Cr.App. 1995). We
    believe, however, any error was harmless.
    In State v. Elrod, 
    721 S.W.2d 820
     (Tenn.Cr.App. 1986), a State’s witness
    testified and related the substance of his conversation with the defendant. He used the
    transcripts of the tapes to refresh his recollection. The Court held it is the duty and
    obligation of the trial judge to control the method and manner of the submission of
    evidence to the jury, and he has wide latitude and discretion in determining the nature
    of the evidence which they are to consider. This discretion will not be disturbed in the
    absence of some indication of abuse.
    The propriety, scope, and control of the examination of witnesses rest within the
    sound discretion of the trial court; and this Court will not interfere with the exercise of
    this discretion unless it clearly appears upon the face of the record that the trial court
    abused its discretion when ruling. State v. Pendergrass, 
    795 S.W.2d 150
    (Tenn.Cr.App. 1989).
    In this case, we cannot say that the trial judge abused her discretion.
    Courts are traditionally given broad discretion in such cases, and witnesses are
    not held to perfection. A witness may be deemed to testify from memory, hence
    through present recollection refreshed, if he or she refers to notes for details but
    remembers the general facts. Cohen et. al. Tennessee Law of Evidence, Sec. 612.1, p.
    13
    401 (3d ed. 1995), citing U.S. v. Rinke, 
    778 F.2d 581
     (10th Cir. 1985), where a witness
    referred to notes of telephone calls; Doty v. Elias, 
    733 F.2d 720
     (1984), where
    witnesses referred to notes of exact dates they worked at a restaurant.
    This issue is without merit.
    Defendant’s Statements Made After Arrest
    After the defendant was arrested, he was transported to the sheriff’s department
    where a detective asked him if he knew the nature of the allegations against him. The
    defendant responded “I believe it’s about me molesting or raping my daughter.”
    The defendant acknowledges that he was advised of his Miranda rights prior to
    making the statement. However, he contends that the statement should have been
    suppressed, alleging that he was detained an unnecessary length of time before being
    taken before a magistrate. The defendant was given his Miranda warnings when he
    was arrested, and was promptly transported to the sheriff’s department, where Miranda
    warnings were again given to the defendant. The defendant signed a waiver form, then
    made the statements in question. Those statements were made approximately forty-
    five minutes after his arrest. He then stated he wanted to consult with an attorney, and
    the questioning ceased. Sometime before 9:00 p.m., the night court commissioner
    approved the affidavit of complaint prepared by the detective, and an arrest warrant
    was issued. The defendant was detained no more than two and half hours before a
    probable cause determination was made as to his arrest.
    When a suspect is detained without being taken before a neutral person who
    explains the process, issues warnings, and assures that constitutional rights are
    honored, the environment can be intimidating, and often geared to producing in the
    accused a compulsion to confess. Nevertheless, most courts have not adopted a rule
    of exclusion, but instead require exclusion of a confession given during a period of
    unnecessary delay only if an examination of the totality of the circumstances reveals
    that the statement was not voluntarily given. State v. Huddleston, 
    924 S.W.2d 666
    (Tenn. 1996).
    14
    A detention is unreasonable if “for the purpose of gathering additional evidence
    to justify the arrest”. County of Riverside v. McLaughlin, 
    500 U.S. 44
    , 56; 
    111 S.Ct. 1661
    ; 
    114 L.Ed.2d 49
     (1991).
    In this case there was not a significant delay. The delay was not for the purpose
    of gathering additional evidence to justify the arrest. The defendant had been arrested
    based on the allegations of the victim, and the conversation which had been overheard
    by the law enforcement officers between the victim and the defendant. The defendant
    was advised of his Miranda rights, and given an opportunity to make a statement. The
    defendant has made no showing that the detectives purposely delayed obtaining a
    probable cause determination. There was no unconstitutional or illegal delay. This
    issue is without merit.
    Cross Examination of the Victim
    The defendant alleges that the trial court erroneously precluded inquiry on cross
    examination of the victim concerning allegations that she made false statements to law
    enforcement authorities investigating an incident alleged to have occurred when the
    victim was eight years old, some seven years before the incidents alleged in the
    indictment.
    In a jury out hearing during cross examination of the victim, the defense counsel
    proposed to asked the victim about the incident, to examine the witness on the issue of
    credibility. Defense counsel proposed in the jury out hearing to the trial judge that he
    would desire to cross examine the victim in front of the jury concerning the fact that she
    was a victim of a crime years before the incidents alleged in this indictment. That crime
    was investigated and a Mr. Maybee was prosecuted by authorities in Davidson County
    concerning that crime. The victim made claim that Jason Mays was present during one
    of the crimes perpetrated on her, and she told law enforcement that Jason Mays had
    been killed in a plane crash, and that was not true. The court did not allow that line of
    questioning.
    15
    Tenn. R. Evid. 608 provides that, absent a showing of necessity to a fair
    determination of the case, evidence of conduct committed while the witness was a
    juvenile is generally not admissible. The court may however allow evidence of such
    conduct of a witness if the court is satisfied that the admission of the evidence is
    necessary for a fair determination in the proceeding. In this case, the court had a jury
    out hearing, and determined that the proposed cross examination would not lead to a
    fair determination in the criminal proceeding. The trial court determined that the risk of
    delving into allegations of a prior rape by someone else when the victim was only about
    eight years old out weighed any probative value of a statement she allegedly made to
    investigators.
    The propriety, scope, manner and control of the cross examination of witnesses
    is a matter within the discretion of the trial judge, which will not be interfered with in
    absence of an abuse thereof. State v. Pendergrass, 
    795 S.W.2d 150
    , 156 (Tenn. Crim.
    App. 1989). Appellate courts may not disturb discretionary limitations on cross
    examination absent a clear and plain abuse of discretion. State v. Richardson, 
    875 S.W.2d 671
    , 675 (Tenn. Crim. App. 1993), perm. to app. denied. (Tenn. 1994).
    We conclude that the trial court did not abuse discretion, and properly refused to
    allow defense counsel to cross examine the victim about statements she allegedly
    made during an investigation of a rape when she was eight years old.
    Exhibits to the Jury Room
    The defendant alleges that the trial court erred in permitting the jury to take the
    transcript of the taped conversation between the defendant and victim into the jury
    room during deliberations.
    Tennessee Rules of Criminal Procedure 30.1 states that the jury shall take to the
    jury room all exhibits received in evidence for the jury’s examination during
    deliberations, unless good cause is shown for not taking an exhibit to the jury.
    The trial court properly instructed the jury to consider the transcript as an aid in
    understanding the tape, but to listen to the tape itself as the primary evidence. The
    16
    defendant submits the transcript should not have been taken to the jury room because
    the tape, and not the transcript, is the evidence in this case. However both were
    marked as exhibits. The rule requiring exhibits to go back to the jury room is mandatory
    unless the judge determines that an exhibit should not be submitted to the jury. In this
    case, the defendant has failed to show that the judge committed error. This issue is
    without merit.
    Consecutive Sentences
    The defendant alleges that the trial court erred by ordering consecutive
    sentences, and that the defendant received a harsher effective sentence on re-trial,
    violating due process.
    The trial court sentenced the defendant to seven years on each of the twenty-
    five convictions, with ten of those sentences to be served consecutively, and the
    remainder concurrently.
    At the sentencing hearing, the trial court heard testimony from the victim
    concerning her hospitalizations, suicide attempts, and drug problems as a result of the
    continued actions of the defendant.
    The trial court determined that the defendant had multiple criminal convictions,
    and should be sentenced as a Range II offender. Incest is a Class C felony (TENN.
    CODE ANN. 39-15-302), and the minimum sentence for Range II offender is six years.
    The trial court found there were no mitigating factors, and that there was an
    enhancement factor that applied to this case, that the offense involved a victim and was
    committed to gratify the defendant’s desire for pleasure or excitement. The trial court
    sentenced the defendant to one year above the minimum sentence for each count.
    The trial court then determined that TENN. CODE ANN. 40-35-115(b)(5) applied
    to this case. That statute provides that consecutive sentencing may be ordered if the
    defendant is convicted of two or more statutory offenses involving sexual abuse of a
    minor with consideration of the aggravating circumstances arising from the relationship
    between the defendant and the victim, the time span of the defendant’s undetected
    17
    sexual activity, the nature and scope of the sexual acts and extent of the residual,
    physical and mental damage to the victim.
    There was testimony that the defendant began having sexual relations with the
    victim when she was only ten years old. There had been a few sexual encounters even
    earlier. The defendant had indicated on the unredacted version of the taped
    conversation between the defendant and victim that he thought he began having sex
    with the victim when he got out of prison in 1986, which would make the victim nine
    years of age. The defendant was convicted of twenty-five statutory offenses involving
    sexual abuse of his daughter when she was fifteen years of age. The time span of the
    defendant’s undetected sexual activity spanned several years. The nature and scope
    of the sexual acts covered a wide range of sexual activity, including intercourse, oral
    sex, anal sex, digital penetration, watching x-rated videos and acting out, requiring the
    victim to dance, and ripping off her garments. The extent of the residual, physical and
    mental damage to the victim included attempted suicide more than once, the victim
    being admitted to Vanderbilt Hospital three times, and the victim developing a heavy
    drug abuse problem. The victim testified that she did not like herself. She used to love
    her father, and now she hated him because of what he had done to her.
    Because of the aggravating circumstances, TENN. CODE ANN. 40-35-115(b)(5)
    properly applies as a basis for consecutive sentencing. See State v. Woodcock, 
    922 S.W.2d 904
     (Tenn. Crim App. 1995).
    The court is further required to determine whether the consecutive sentences (1)
    are reasonably related to the severity of the offenses committed; (2) served to protect
    the public from further criminal conduct by the offender; and (3) are congruent with
    general principles of sentencing. State v. Wilkerson, 
    905 S.W.2d 933
    , 939 (Tenn.
    1995).
    The defendant is an offender who has a prior record of criminal activity. He was
    sentenced as a Range II offender. His criminal acts in this case were extensive. The
    trial court determined that consecutive sentences are reasonably related to the severity
    of the offenses committed, and were congruent with the general principles of
    sentencing, and were necessary to protect the public from further criminal conduct by
    18
    the offender. The defendant persisted in incestuous activities with his adopted
    daughter after promising to cease those activities. The length of time over which these
    activities continued evidenced a long term pattern of behavior presenting a risk of future
    repetition.
    The court properly imposed consecutive sentences.
    The defendant further alleges that the sentences were more severe on re-trial,
    and that the imposition of a harsher sentence is unconstitutional, citing North Carolina
    v. Pearce, 
    395 U.S. 812
    , 
    89 S.Ct. 2072
    , 
    23 L.Ed.2d 656
     (1969).        In Pearce, the United
    States Supreme Court held that a harsher sentence after a new trial raises a
    presumption of “judicial vindictiveness,” which may be overcome by an affirmative
    showing on the record of the reasons for the harsher sentence. Id at 725-26; See also
    State v. Gilliam, 
    901 S.W.2d 385
    , 392 (Tenn. 1995).
    In resentencing a defendant, the trial court may justify an increased sentence by
    affirmatively identifying relevant evidence occurring both before and after the original
    sentencing proceedings. Wasman v. United States, 
    468 U.S. 559
    , 569, 
    104 S.Ct. 3217
    , 
    82 L.Ed.2d 424
     (1984). State v. Coggins, 
    1995 Tenn. Crim. App. LEXIS 886
    (Ct.Crim.App. 1995).
    The sentencing judge at re-trial was the same judge who granted post-conviction
    relief, and ordered the new trial. The record reveals that the trial judge reviewed the
    transcript of the sentencing hearing in the prior proceedings, and found that the trial
    court did not address enhancement factors. She considered testimony heard at trial,
    the pre-sentence report, the testimony heard at sentencing hearing, and determined
    that there were no mitigating factors but an enhancement factor to apply. The trial
    judge then enhanced the sentence one year beyond the minimum.
    The victim testified at the sentencing hearing on re-trial, but had not testified at
    the original sentencing hearing. Testimony included the effect the activities had on her
    which required hospitalization, and which resulted in suicide attempts and drug
    problems. The defendant began sexual activities on the victim when she was
    approximately ten years of age, telling her that he needed to show her what real love is.
    He told her that it was not wrong for him to show her the right way and not the way it
    19
    had happened with her in the rape. So he was just going to start showing her how it
    was supposed to be done in the right way. He began a steady pattern of sexual abuse.
    As she grew older she realized that he was supposed to be there for her, to keep her
    safe, but not to have sex with her. She grew to hate him. She has required psychiatric
    treatment.
    The pre-sentence report indicates that the defendant was on parole at the time
    these offenses occurred.
    To assure that vindictiveness plays no part, the court in Pearce held that it is
    presumed that a more severe sentence after re-trial violates due process unless the
    reasons for imposing the greater sentence affirmatively appear and are based upon
    objective information in the record. Id at 726. In Alabama v. Smith, 
    490 U.S. 794
    , 
    104 L.Ed.2d 865
    , 
    109 S.Ct. 2201
     (1989), the court limited the application of Pearce to those
    situations in which there is a reasonable likelihood that the increase in sentence is the
    product of actual vindictiveness on the part of the sentencing authority. 
    490 U.S. at 799
    .
    State v. Kendricks, 
    1995 Tenn. Crim. App. LEXIS 268
     (Ct. Crim. App. 1995). In this
    case there has been no showing of a reasonable likelihood that the increase in
    sentence is the product of actual vindictiveness. There is objective information in the
    record for imposing the greater sentence on re-trial. This issue is without merit.
    20
    We therefore AFFIRM the judgment of the trial court.
    ______________________________
    JUDGE
    CONCUR:
    _________________________
    _________________________
    21